Citation Nr: 0117553
Decision Date: 06/29/01 Archive Date: 07/03/01
DOCKET NO. 93-11 685 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUES
1. Entitlement to an increased (compensable) rating for a
laceration scar of the left hand.
2. Entitlement to an increased (compensable) rating for a
laceration scar of the right thigh near the anus.
3. Entitlement to an effective date earlier than February
11, 1992, for assignment of a 10 percent rating for multiple
noncompensable disabilities pursuant to 38 C.F.R. § 3.324.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
REMAND
The veteran had active duty from July 1942 to October 1945.
This matter originally came before the Board of Veterans'
Appeals (Board) on appeal from rating decisions of September
1992 and February 1993 by the Department of Veterans Affairs
(VA) Albuquerque, New Mexico, regional office (RO). The
rating decisions, in pertinent part, confirmed previously
assigned noncompensable ratings for a laceration scar of the
left hand and a laceration scar of the right thigh near the
anus. In May 1995, the Board remanded the case for
additional development. In a decision of September 1997, the
Board confirmed the noncompensable ratings for the laceration
scar of the left hand and the laceration scar of the right
thigh near the anus. Additionally, the Board addressed
several other issues.
The veteran subsequently appealed to the United States Court
of Appeals for Veterans Claims (Court). In September 1998,
the Secretary of Veterans Affairs (Secretary) and the
veteran's representative before the Court, attorney Robert E.
Tangora, filed a Joint Motion For Remand. In that motion,
the parties agreed that a VA examination of June 1995 was not
adequate because the examiner did not review the veteran's
claims file. The parties also stated that the Board had not
provided an adequate explanation with respect to the reasons
and bases for the September 1997 decision. Finally, the
parties stated that the VA had not satisfied it's duty to
obtain certain private medical records. In an order issued
later that month, the Court granted the Joint Motion, vacated
the portion of the Board's September 1997 decision with
respect to the claims for increased ratings for a laceration
scar of the left hand and a laceration scar of the right
thigh near the anus, and returned the case to the Board. In
April 1999, the Board remanded the case to the RO for the
requested action. In a rating decision of June 1999, the RO
again confirmed the noncompensable ratings, but granted a 10
percent rating for multiple noncompensable disabilities
pursuant to 38 C.F.R. § 3.324. The RO assigned an effective
date of February 11, 1992, for that rating. The veteran
disagreed with that effective date, and the issue has been
certified as an issue on appeal. The RO has now returned the
case to the Board for further appellate review.
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
redefines the obligations of VA with respect to the duty to
assist and includes an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. This law also eliminates the concept
of a well-grounded claim and supersedes the decision of the
United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000)
(per curiam order), which had held that VA cannot assist in
the development of a claim that is not well grounded. This
change in the law is applicable to all claims filed on or
after the date of enactment of the VCAA, or filed before the
date of enactment and not yet final as of that date.
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
§ 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the VCAA, a
remand in this case is required for compliance with the
notice and duty to assist provisions contained in the new
law. In addition, because the RO has not yet considered
whether any additional notification or development action is
required under the VCAA, it would be potentially prejudicial
to the appellant if the Board were to proceed to issue a
decision at this time. See Bernard v. Brown, 4 Vet. App. 384
(1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992)
(published at 57 Fed. Reg. 49,747 (1992)). Therefore, for
these reasons, a remand is required.
It is the RO's responsibility to ensure that all appropriate
development is undertaken in this case. However, in an
effort to assist the RO, the Board has reviewed the claims
file and identified certain assistance that must be rendered
to comply with the VCAA. The Board's review of the VA
examination report of June 1999 reveals that it is not
adequate for rating purposes. The only scar of the left
upper extremity which was examined was a scar of the left
wrist. Significantly, this scar is either attributable to
surgery which was performed in July 1987 for treatment of the
veteran's nonservice-connected left carpal tunnel syndrome or
it is due to a nonservice-connected on-the-job-injury which
occurred after service in the mid 1970's when a tire he was
working on exploded. In this regard, the Board notes that
veteran's service medical records include a record dated in
February 1945 which shows that the service-connected scar of
the left hand was located between the distal ends of the
third and fourth metacarpals of the left hand (rather than on
the left wrist). That service-connected injury reportedly
occurred accidentally while the veteran was doing an
automotive repair. The VA examination report of June 1999
does not contain any findings with respect to the scar
located between the distal ends of the third and fourth
metacarpals of the left hand which resulted from that
accidental injury. When the medical evidence is not
adequate, the VA must supplement the record by seeking an
advisory opinion or ordering another examination. See Littke
v. Derwinski, 1 Vet. App. 90 (1991). For this reason, the
Board concludes that another VA examination is required.
Accordingly, this case is REMANDED for the following:
1. The veteran should be afforded a VA
scars examination to determine the
current severity of the veteran's
service-connected scar located between
the distal ends of the third and fourth
metacarpals. Photographs illustrating the
scar should be taken. The claims folder
should be made available to and reviewed
by the examiner before the examination.
In particular, the examiner should review
the February 1945 service medical record
which documents the nature and extent of
the veteran's service-connected injury.
The examiner should specifically address
the criteria for rating scars under
diagnostic codes 7803, 7804, and 7805, to
include whether the veteran's service-
connected scar is poorly nourished with
repeated ulcerations, is tender and
painful on objective examination, or
results in limitation of function of the
affected part. The examiner should also
address factors listed in 38 C.F.R.
§ 4.48 (removed effective July 3, 1997)
which provided that as to the residuals
of wounds not chiefly characterized by
amputation, ankylosis, or limitation of
motion, the most obvious feature of the
disability and the starting point for
physical examination is the superficial
scar. An accurate and full description
of the scar must be furnished by the
medical examiner, so that the disability
from it may be intelligently visualized
and evaluated. Its location, length,
width and depth will be described;
whether it is painful, inflamed, keloid;
adherent or nonadherent; whether it
involves or distorts neighboring
orifices; whether it is exerting traction
or limiting normal motion of the parts
involved; whether there is ankylosis of
contiguous joints; whether there is bone
or muscle loss, or muscle hernia, and, if
so, to what extent and how productive of
interference with normal functions; and
whether there is associated lesion of a
peripheral nerve (the nature and effects
to be depicted by a neurologist, wherever
possible).
The examiner should also differentiate
between any impairment of function which
is due to a nonservice-connected
disability (such as the veteran's
postoperative carpal tunnel syndrome) and
that which is attributable to the
service-connected scar located between
the distal ends of the third and fourth
metacarpals. Such an opinion is required
in order to properly assign a disability
rating for the service-connected
disability. See Mittleider v. West, 11
Vet. App. 181, 182 (1998)(in which the
Court vacated a decision by the Board
where there was no medical evidence in
the record separating the effects of the
appellant's post-traumatic stress
disorder from his nonservice-connected
personality disorders). If the examiner
is unable to differentiate between the
service-connected and nonservice-
connected disorders then that conclusion
should be specifically stated in the
examination report.
2. The RO should review the examination
report to determine if it is in
compliance with this REMAND. If
deficient in any manner, it should be
returned, along with the claims file, for
immediate corrective action.
3. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied.
4. Thereafter, the RO should readjudicate
the claims. If the benefit sought on
appeal remains denied, the appellant and
the appellant's representative should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain notice
of all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified. The appellant has the right to
submit additional evidence and argument on the matter or
matters the Board has remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).